The modern law practice remains in a state of transition. Attorneys continue to integrate more technology into the law practice while coping with the challenges of a continued economic slowdown.
Several notable decisions continue to shape law practice, with significant decisions on the horizon. In addition, the legal malpractice risks associated with various practices have changed, with some traditional high risk areas improving and other areas increasing in risk. Finally, the legal malpractice insurance market continues to offer opportunities for attorneys to expand coverage while maintaining their current premiums.
Here is how 2012 shaped up.
Technology and the Internet
Virtually every law practice has now integrated modern technology and the Internet. Undoubtedly, this has increased attorneys' efficiency, with technology that can compare documents, paste boilerplate provisions, correct spellings and errors, and integrate calendaring into every aspect of the practice. Communication in the modern law practice has never been faster or more continuous. With 24-hour voicemail and email, attorneys find themselves on constant call.
With the changes, new risks have emerged. These include implied attorney-client relationships from email exchanges; risks to third parties who receive forwarded emails; and inadvertent disclosures to unintended recipients of emails. Most significantly, attorneys who rely on their inboxes for reminders now face a new kind of inefficient and dangerous calendaring system.
There are solutions for these and other risks. Some involve simple steps employing the very technology that creates the risks. For a few good examples, see Reducing email risks, Daily Report, July 3, 2012, http://bit.ly/WhVKfS. Others require attorneys to recognize that new risks require new solutions aimed at adapting to the technologically driven law practice.
One thing has become clear: it is no longer possible to just ignore new technologies in the modern law practice.
Georgia appellate courts in 2012 decided more than half a dozen cases involving attorneys and their duties and obligations. To sustain a legal malpractice claim in Georgia, a plaintiff must prove a duty, a breach of the duty, and proximately caused damages.
The area of legal malpractice law receiving the most attention, by far, was specifically causation. Various Court of Appeals decisions addressed the causation element in the transaction, litigation and probate contexts.
Causation is often the most complicated element of a legal malpractice case, with the plaintiff bearing the burden of proving that the outcome of a representation would have been different but for the attorney's failure to perform ordinarily skillful services. Indeed, causation is the element that distinguishes a mere mistake from actionable legal malpractice. A mistake without proximately caused damage is not legal malpractice.